News

Cain Hibbard partner Syd Smithers guided Greenagers, Inc., a non-profit organization that engages teens and young adults in meaningful work in environmental conservation, sustainable farming and natural resource management, through the complex process of acquiring the historic April Hill property on Undermountain Road, South Egremont. The property will serve as the new headquarters for the energetic non-profit under the strong leadership of its Executive Director Will Conklin of Sheffield. The original house on the April Hill property dates back to 1744, and was added to the National Register of Historic Places in 1990. Beginning in 1976, April Hill served as the summer home of Charles and Mary Margaret Kellogg. In 2004, Mary Margaret Kellogg donated the property to the Appalachian Trail Conservancy for educational, historic preservation, recreational, agricultural and conservation activities. In 2017, after a solicitation of proposals, The Conservancy chose Greenagers to be the next steward of April Hill. Acquisition of the property presented some special legal challenges, as it is protected by a scenic easement, an agricultural preservation restriction, a historic preservation restriction, and a conservation restriction. To accomplish a successful succession of stewardship, Syd Smithers redrafted and updated property protections in a way designed to preserve its...

Diane DeGiacomo, chair of the firm’s litigation department will serve as a featured speaker at “Cutting Edge Issues in Western Massachusetts Family Law Practice”, along with distinguished family law lawyers and judges from the four western counties. In prior years, she has discussed recent, important court decisions and legislative changes in Massachusetts law as well as demonstrated the art of persuasion in a mock argument involving complex financial matters. This year, she will focus on how to prove your case, with an in-depth look into different tools to obtain critical discovery and methods to turn testimony and written documents into persuasive evidence admissible at trial. For more details and registration information, please visit: https://www.mcle.org/product/catalog/code/2190152PMA

Cain Hibbard partner Syd Smithers was successful in achieving a zone map change in North Adams that should help to ease development efforts of The Beyond Place, LLC, the parent entity developing the new Tourists Hotel on State Road in North Adams. Over the course of a year or more, the developer and three related entities had acquired nine separate parcels of land on State Road and in the Village of Blackinton in furtherance of their plans for Tourists Hotel and related development, including a restaurant. The properties were located in four different zoning districts by the City of North Adams zoning ordinance. Having its properties governed by disparate zoning requirements introduced elements of uncertainty and inconsistency into the overall development concept envisioned for Tourists Hotel. In order to promote a sensible and comprehensive redevelopment of the several properties for its hotel and related purposes, pursuant to a master plan, The Beyond Place, LLC engaged Smithers, a Berkshire real estate attorney, to seek consistent zoning treatment and predictability. Smithers prepared the necessary zone map amendment petition to the North Adams City Council and Planning Board and led the development team through presentations to a joint public hearing by the City...

So, a man with a miniature pony walks into a bar. . . Sound like the beginning of a joke? In any public place, it is no joke, and you might be liable for discrimination if you ask the individual to leave. This is because dogs and miniature horses may qualify as service animals if they have been trained to perform a specific task related to an individual’s disability. Under Massachusetts law, only a dog qualifies as a service animal, and its owner must have a sensory or physical disability. Federal law is broader. It permits miniature horses to qualify as service animals, and their owner may have any kind of disability, including a psychiatric disability. However, even under federal law, the animal must be “trained to perform a specific task.” If the animal’s sole function is to provide emotional support and comfort to the disabled individual, it does not qualify as a service animal. Such “emotional support” animals need not be permitted in public places, with the exception of planes and the common areas of housing developments. How can you tell if the dog or miniature horse is a service animal? In some cases, it may be obvious, and...

October 30, 2018 Cain Hibbard has added three lawyers to its litigation group, bolstering its capacity in the areas of domestic relations, health law, intellectual property, and complex litigation. “We feel very fortunate to have found three terrific lawyers who wanted to make the Berkshires their home, and Cain Hibbard their firm,” said Lucy Prashker, Cain Hibbard’s managing partner. Kaitlin O’Brien and Taylor Ventre both have begun with the firm as first year associates based in the firm’s Pittsfield office. Melissa Stewart, who is based in the firm’s Great Barrington office, has joined the firm after having spent several years practicing with a large firm both in Boston, and in New York City. “It’s great not just for Cain Hibbard and our clients, but for the Berkshires to have such a wonderful influx of talented young professionals; we could not be more pleased,” said Prashker. Kaitlin O’Brien, a native of Western New York, graduated magna cum laude from Allegheny College in 2015 with a Bachelor of Arts in History, and from Boston University School of Law in 2018. While at BU Law, Kaitlin served as a Writing Fellow, a board member of the Women’s Law Association, and a staff member on the...

On October 1, 2018, Massachusetts law governing non-compete agreements and the protection of trade secrets changed. While much remains unclear on how these new laws will be interpreted by the courts, here is what we do know: Non-compete Agreements The new noncompete law applies to all employees (and independent contractors) who are employed in or a resident of Massachusetts. Under the new law, noncompete provisions in employment agreements: Are not enforceable against (i) hourly employees, (ii) undergraduate or graduate students employed as interns, or (iii) minors; Are not enforceable if an employee is terminated without cause; Must be in writing, be provided to potential new employees at least 10 days prior to the start of a job or before offering the job, and must expressly state that the employee has the right to consult with a lawyer prior to signing; Must include additional consideration for the noncompete obligation other than “continuation of employment” for existing employees, and must provide those employees with the same 10 days’ notice and right to consult with a lawyer prior to signing; With limited exceptions, must be no longer than one year; Must be reasonable in geographic scope and reasonable in the scope of the...

Vicki Donahue, President of the Berkshire County Bar Association, hosted Joseph Berman, General Counsel of the Massachusetts Board of Bar Overseers, at the Berkshire Bar’s Annual Meeting held May 30, 2018. The Berkshire County Bar Association, a volunteer membership organization, seeks to foster professionalism among Berkshire County lawyers and equal access to the legal system by all in need of legal services. In her opening remarks at the annual meeting, Vicki spoke to the importance of taking advantage of the support and collegiality that the Berkshire Bar affords attorneys practicing in the County, as well as the need for all attorneys to continue to strive to improve their competencies, particularly in the area of technology and the law. Mr. Berman followed, speaking eloquently about the history of lawyer self-regulation, dating back as early as the 17th century, and the role of the BBO not just in policing the practice of law, but as a resource for the vast majority of lawyers who want to do the right thing every day for their clients and the profession. Vicki, who chairs Cain Hibbard’s Business and Banking Group, was elected President of the Berkshire County Bar Association by her peers effective September 1,...

On July 1, 2018, the updated Massachusetts Equal Pay Act[1] will go into effect to remedy the continuing gender wage gap between male and female wage earners. Under the new legislation, all Massachusetts employers are prohibited from paying employees of different genders a different wage for performing comparable work. The law’s scope includes out-of-state employers who have employees with a primary place of work within Massachusetts. Under existing law, an employer must pay equal wages where jobs are comparable in skill, effort, responsibility, working conditions, and substantive content. For example, while food service work and janitorial work require comparable skill, effort, responsibility, and working conditions, the jobs are not comparable because they are substantively different and therefore, unequal wages between the two jobs is acceptable. Under the new law, however, comparable work is more broadly defined. Even if two jobs are substantively different, they can be considered comparable, thus requiring equal pay. Thus, a food service job may be considered comparable to a janitorial job if the two jobs require similar skills, effort, responsibilities and working conditions, even though they are substantively different positions. “Wages” includes incentive pay, deferred compensation and the opportunity to participate in benefit programs under the...

Best Lawyers has named Cain Hibbard partner Diane M. DeGiacomo as a 2018 “Lawyer of the Year.” This distinction is presented annually to one outstanding lawyer in a particular specialty and geographical area who has achieved the highest consensus opinion of their professional abilities by their colleagues. Ms. DeGiacomo was one of only two lawyers in the Commonwealth of Massachusetts selected in the area of family law, with the other lawyer practicing in Boston.

The Pregnant Workers Fairness Act (the “Act”)[1] goes into effect April 1, 2018. Are you ready? The Act applies to all employers with six or more employees. In creating a new protected class, the Act prohibits employment discrimination on the basis of pregnancy or a condition related to pregnancy. An employee may have a condition related to pregnancy during or after pregnancy. Examples are morning sickness, lactation, or the need to express breast milk. No later than April 1, 2018, employers must provide written notice, in a handbook, pamphlet, or some other form, to all employees of the “right to be free from discrimination in relation to pregnancy or a condition related to the employee’s pregnancy, including, but not limited to, lactation or the need to express breast milk for a nursing child, including the right to reasonable accommodations for conditions related to pregnancy.”[2] In addition to the general notice requirement, written notice of rights under the Act must be provided to (1) all new employees at or prior to commencement of employment; and (2) to employees who notify the employer of a pregnancy or an employee who notifies the employer of a pregnancy-related condition, no more than 10...